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By Joshua B. Horn

Stepparent adoptions are the most common form of adoption filed in Alabama. With divorce rates at more than 50 percent, it is common for adults to help raise their spouse’s children.

The Alabama adoption code streamlines stepparent adoptions. These stepparent adoptions are governed by Ala. Code § 26-10A-27, and with a little research, they can be handled easily by attorneys who do not specialize in family adoption law.

This article aims to serve as a guide to those interested in filing a stepparent adoption.

General adoption provisions apply. The probate court in Alabama has original jurisdiction over adoption proceedings.[1] Petitions should be filed in the county in which the adoptee resides or has a legal residence.[2] The consent of the adoptee’s mother and father are required in all adoptions in Alabama.[3] This requirement is not waived or exempted in a stepparent adoption. Alabama law also requires the consent of all adoptees 14 years of age or older.[4] It is important to know that the child wants to be adopted before any paperwork is completed. Although there are exceptions to the consent requirements, this article focuses on the streamlined approach for stepparents to adopt. Notice of all adoptions have to be sent to the State Department of Human Resources, including stepparent adoptions.

During the first consultation with all potential clients looking to adopt a stepchild, consent of the parents should be one of the first questions asked. Without the consent of both natural parents, adoptions are much more complicated and should be handled by an experienced adoption attorney, as they may then involve implied consent arguments and a contested adoption hearing.

I’m always surprised at the number of calls I get about a stepparent adoption when the biological parent is not legally married to anyone. Often these clients have lived with the legal parent for many years. However, the first requirement to be met is that the petitioning parties be “husband and wife.”[5] The adoption code makes no exception for couples living together who are not married.

The stepparent seeking to adopt a minor child must have resided with the minor child for one year prior to filing a petition for adoption.[6]

If these requirements are met, a petition can be filed with the probate court along with the consents of the legal parents and the child (if the child is 14 or older).

A petition to adopt a child is a relatively simple form. It must contain information regarding the petitioner, the biological parents, and the child. The information shall include the dates of birth of the petitioner and the adoptee, marital status of the petitioner, the adoptee’s birth name, the adoptee’s name upon the completion of the adoption, the county of residence of the petitioner and the adoptee, how long the adoptee has resided with the petitioner, and statements regarding the consents of the mother.[7] The adoptee’s original birth certificate and the marriage license of the petitioner and the adoptee’s parent should be attached as exhibits to the petition for adoption. The petition’s signature is to be notarized on the petition.

Know your local judges. Some expect things that the code does not strictly require, such as a statement regarding the petitioner’s criminal history.

Once the petition for adoption is filed, notice of the petition shall be served on the biological parents as well as the State Department of Human Resources. Service may be waived in writing by the parents. Service of process shall be made in accordance with the Alabama Rules of Civil Procedure except that service may be perfected on state DHR by certified mail. Many attorneys make the mistake of sending notice to the local or county Department of Human Resources. It is important to note that only the state DHR office has access to the putative father registry. Therefore, sending notice to the local or county office is not sufficient.

Ala. Code § 26-10A-19 typically requires an investigation into the petitioner as well as the petitioner’s home. However, as part of the stepparent provision in § 26-10A-27, the preplacement and/or post-placement investigation is not required unless the probate court, in its discretion, requires an investigation. Even though § 26-10A-23 requires that the petitioner file an accounting with the court detailing all expenses paid in relation to the adoption, that is expressly waived in stepparent adoptions by § 26-10A-27.

Once state DHR has received notice, a review of the putative father registry will occur as well as a child abuse and neglect (CA/N) investigation. After DHR has completed these investigations, it will send an acknowledgment letter to the probate judge. The probate judge cannot enter a final order on an adoption without this acknowledgement letter from DHR. The petitioner’s attorney should always ensure the probate judge has received this letter before the final hearing to avoid unnecessary time and expense to the client.

Once the probate judge has reviewed the filed petition, the written consents of the adoptee’s parents, and the acknowledgement letter from state DHR, a final hearing will be set. Section 26-10A-25 requires the probate judge to set the final hearing within 90 days of the filing of the petition. At this hearing, the probate judge must find by clear and convincing evidence that the adoptee has resided with the petitioner for the required time, that all necessary consents have been obtained, that service has been made to all persons entitled to receive notice, that all contests have been resolved, and that it is in the adoptee’s best interests for the final adoption decree to be entered.[8]

If the probate judge determines all the above requirements are met, a written decree shall be entered showing the new name of the adoptee.[9] This decree further orders that from the date of the decree, the adoptee shall be accorded the same status as a biologically-born child of the petitioner, including the right to inheritance.[10] Issuance of the final decree also terminates the parental rights of the consenting parent.

From the date of the final decree, the petitioner is no longer a stepparent, but “shall be treated as the natural child of the adopting parent,” and the adopting parent has the responsibility of providing for the child until the child reaches the age of majority – 19.[11] It is vitally important to discuss the legal requirements and consequences with the petitioner prior to filing for an adoption.

This responsibility cannot be terminated by divorce. Minor children who have been adopted will be treated as biological children of the marriage. The domestic relations court overseeing a divorce can and will order child support to be paid by the non-custodial parent. It is even possible for the adoptive parent to be granted custody of the adopted child in a divorce over the biological parent of the child.

Stepparent adoptions seek to obtain a permanent home and family for minor children. They are a highlight for attorneys and give great pleasure. Stepparent adoptions are not complicated and can be completed quickly. It is my experience that most probate judges will sit down with the attorney and walk them through the process. However, we hope that after reading this article, and with a little research, that will not be needed.

Endnotes

[1] Ala. Code § 26-10A-3.

[2] Id. at § 26-10A-4.

[3] Id. at § 26-10A-7.

[4] Id. at § 26-10A-7(a)(1).

[5] Id. at § 26-10A-5(a).

[6] Id. at § 26-10A-27(1).

[7] Petition requirements are codified in Ala. Code § 26-10A-16.

[8] Id. at § 26-10A-25(b).

[9] Id. at § 26-10A-25(c).

[10] Id. at § 26-10A-29(a).

[11] Id. at § 26-10A-29(a).